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PETITIONER:

SANTURAM KHUDAI

Vs.

RESPONDENT:

KIMATRAI PRINTERS & PROCESSORS (P) Ltd. & ORS.

DATE OF JUDGMENT09/12/1977

BENCH:

SINGH, JASWANT

BENCH:

SINGH, JASWANT

UNTWALIA, N.L.

CITATION:

1978 AIR 202 1978 SCR (2) 387

1978 SCC (1) 162

CITATOR INFO :

R 1985 SC 311 (22)

ACT:

Bombay Industrial Relations Act, 1946 (Bombay Act No. XI of

1947), s. 80 r/w s 27A, scope of-Right of the individual

employee to appear or act in a proceeding under the 1946

Act, where a representative union has entered appearance as

the representative of the employees.

HEADNOTE:

Respondent No. 1 is an undertaking in the Textile Processing

Industry which was recognised as such under the Bombay

Industrial Relations Act. Respondent No. 2 namely, the

General Workers' Union, Bhadra, Ahmedabad is a

representative union of all the employees of the various

undertakings registered by the Registrar as undertakings in

the Textile Processing Industry in the local area of

Ahmedabad city and city Taluka irrespective of the fact that

the employees of any of the aforesaid undertakings may or

may not be members of the representative union and is

registered and recognised as such under the provisions of

the Act. An industrial reference No. 176/1976 was made to

the Industrial Court at Ahmedabad on 27-7-76 as respondent

No. 1 did not agree to a desire of respondent No. 2 for a

change in respect of classification, pay scales, dearness

allowance, casual leaves, festival holidays and certain

other industrial matters. In May, 1976 a new rival union

was formed under the name and style of "New Labour General

Trade Union, Ahmedabad" which was registered under the Trade

Unions Act on June 3, 1976. This new Union by its letter

dated June 8, 1976, raised certain demands regarding issue

of permanent entry passes, casual leave, festival holidays,

provident fund, Employees State Insurance Scheme, bonus,

dearness allowance which were not heeded to by respondent

No. 1 on the ground that the Union could not be treated as a

representative union under the Act. Since every effort of

theirs failed to elicit any response from respondent No. 1,

the New Union gave a strike notice on September 2, 1976.

Pursuant thereto 131 employees of respondent No. 1 went on

strike on September 24, 1976, whereupon an application No.

1455/76. was made on the following day, by respondent No. 1

to the Third Labour Court at Ahmedabad u/s. 79(1) and (4)

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r/w ss. 78(1)(A)(C) and 97(1) of the Act for a declaration

that the action of the workers mentioned in Annexures 'A'

and 'B' to the application amounted to an illegal strike.

In the said proceedings respondent No. 2 appeared as the

representative and approved union for the processing

industry in the local area where the mills of respondent No.

1 are situate and filed written statement admitting that the

strike resorted to by the workmen was illegal. On October

4, 1976, the appellant and five other employees of

respondent No. 1 made an application to the said Labour

Court for impleading them as parties to the aforesaid

proceedings No. 1455/76 and allowing them to appear and

defend the same. On the same day, the appellant and 15

other employees of respondent No. 1 requested the Labour

Court to declare the strike as legal. The aforesaid

application for being impleaded as parties was rejected by

the Labour Court, as per its order dated 6-10-76. On 12-10-

76, the Labour Court allowed the application No. 1455 of

1976 of respondent No. 1 u/s. 79(1) and (4) read with ss. 78

(1 ) (A) (C) and 97 (1 ) of the Act and declared that the

employees mentioned in Annexures 'A' and 'B' to the

application resorted to an illegal strike w.e.f. 24-9-1976

the continuation whereof was also illegal as it had been

resorted to during the pendency of the reference No. 176 of

1976, wherein as a result of negotiations, an interim

settlement was arrived at on November 17, 1977. A special

Civil Application No. 1845/76 filed by the appellants under

Art. 227 of the Constitution for quashing the two orders of

the Labour Court dated 6-10-76 and 12-10-76 was dismissed in

limine by the Gujarat High Court.

Dismissing the appeal by special leave, the Court,

12-1114SCI/77

388

HELD : (1) The legislative intent underlying the scheme of

the Bombay Industrial Relations Act being to inculcate and

encourage the practice of collective bargaining so that the

labour is neither exploited nor victimised and industrial

peace and harmony is ensured, the provisions of the Act are

designed to emphasize that if labour in an industry is

organised through its own union which is registered and

recognised under the Act, then it is that union which can

appear and do all acts and agitate matters in its

representative capacity for the labour and if it does choose

to appear or act, then no individual employee is competent

to appear and present his point of view. [392 B-C]

(2)Section 80 of the Act makes it clear that the Labour

Court can permit the parties affected by the dispute to

appear in the manner provided by ss. 80A to 80C of the Act,

but the discretion conferred on the Labour Court has

specifically been made subject to the provisions of Chapter

V which deals with "representation of employees and

employers and appearance on their behalf". [392 E-F]

(3)Section 27A of the Act consists of two parts. While

the second part contains the general rule prohibiting the

grant of permission to an individual employee to appear or

act in any proceeding under the Act except through the

representative of the employees, the first part carves out

three exceptions to the said general rule which are

mentioned in s. 32, 33 and 33A of the Act. Whereas the last

exception, that is, the one carved out by s. 33-A of the Act

relates to proceedings where the dispute is between

employees and employees, the other two exceptions mentioned

in ss. 32 and 33 of the Act relate to proceedings in respect

of certain other disputes. Sections 32 and 33 of the Act,

no doubt, engraft exceptions on the aforesaid general rule

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embodied in s. 27A of the Act, the provisos appended thereto

specifically preclude individual employees from appearing or

acting in any proceeding under the Act where the

representative union enters appearance or acts as the

representative of employees. [392 G-H, 393 A-F]

Girja Shankar Kashi Ram v. The Gujrat Spinning and Weaving

Co. Ltd [1962] 2 Supp. SCR 890 [1962] 2 L.L.J. 369 (S.C.)

and Textile Labour Association, Bhadra Ahmedabad v.

Ahmedabad Mill Owners Association, Ahmedabad (1970)3 SCC 890

at p. 891, followed.

(4)Mala fides or bona fides of a representative union has

no relevance while considering the provisions of s. 27-A and

ss. 32 and 33 of the Act which taken together impose an

absolute ban on the appearance of any individual employee in

any proceeding under the Act where the representation union

chooses to appear or act as representative of the employees.

In case the employees find that the representative union is

acting in a manner which is prejudicial to their interest,

their remedy lies in invoking the aid of the Registrar under

Chapter III of the Act and asking him to cancel the

registration of the union. [395 A-C]

Girja Shankar Kashi Ram v. The Gujarat' S inning & Weaving

Co. Ltd. [1962] 2 Supp. SCR 890=(1962) 2 L.L.J. 369(S.C),

applied.

N. M. Naik v. Golaba Land Mills (1960) L.I.J. 448, over-

ruled.

(5)A combined reading of ss. 80, 27A, 30, 32 and 33 of the

Act leaves no room for doubt that consistent with its avowed

policy of preventing the exploitation of the workers and

augmenting their bargaining power, the Legislature has

clothed the representative union with plenary power to

appear or act on behalf of employees in any proceeding under

the Act and has deprived the individual employee or workman

of the right to appear or act, in any proceeding under the

Act where the representative union enters appearance or acts

,is representative of employees. [383 B-C]

Girja Shankar Kashi Ram v. The Gujarat Spinning & Weaving

Co. Ltd. [1962] 2 Supp. SCR 890=(1962) 2 L.L.J. 369 (S.C.),

applied.

(6)In the instant case (a) neither the appellant nor his

other co-employees had any locus standi to appear or act as

individual employees in the proceedings initiated by

respondent No. 1 in which respondent No. 2 which is a

representative union in the industry in the local area had

the right to appear and act as the representative of the

employees in the industry and did appear or act as such;

[395 G-H]

389

(b)The new union to which the appellant and some of his

co-employees belonged would have no right to appear or act

on behalf of the appellant or his co-employees in the

proceedings initiated by respondent No. 1 as it had not been

registered and recognised as the representative union of

employees under the Act. [396 A]

[In view of the abstention of the parties from addressing

the court regarding the legality or otherwise of the strike,

the court refrained from making any observation in regard

thereto.]

JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 21 11 of

1977.

Appeal by Special Leave, from the Judgment and Order dated

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16-11-76 of the, Gujarat High Court in Special Civil

Application No. 1 845 of 1976.

B. Datta and K. Kumar for the Appellant.

Y. S. Chithey, V. N. Ganpule, Mukul Mudgal, M. R. Gehani

and

Mrs. V. D. Khanna for Respondent No. 1.

V. M. Tarkunde, K. L. Hathi and P. C. Kapur for Respondent

No.

The Judgment of the Court was delivered by

JASWANT SINGH, J. This appeal by special leave which is

directed against the order dated November 16, 1976 of the

High Court of Gujarat at Ahmedabad summarily dismissing

Special Civil Application No. 1845% of 1976 filed by the

appellant and another under Article 227 of the Constitution

raises an interesting question regarding the right of

individual employees to appear or act in a proceeding under

the Bombay Industrial Relations Act, 1946 (Bombay Act No. XI

of 1947) (herein,after referred to as 'the Act') where a

representative union has entered ,appearance as the

representative of the employees.

The facts and circumstances giving rise to this appeal, in

brief, are

Respondent No. 1 herein viz. The, Kimatrai Printers and

Processors Pvt. Ltd. Ahmedabad is an undertaking in the

Textile Processing Industry which was recognised as such

vide Notification No. KH-SHMC/ 2724/RU dated September 13,

1974 issued by the Assistant Registrar, Bombay Industrial

Relations Act in exercise of the powers conferred on him

under section 11(1) of the Act. Respondent No. 2 viz. the

General Workers Union, Bhadra, Ahmedabad is a representative

union of all the employees of the various undertakings

registered by the Registrar ,as undertakings in the Textile

Processing Industry in the local area of Ahmedabad City and

city Taluka irrespective of the fact that the employees of

any of the aforesaid undertakings may or may not be members

of the representative union and is registered and recognised

as such ,under the provisions of the Act. In 1975, the said

union raised demands regarding wages dearness allowance,

washing allowance, supply of shoes, uniforms, and casual,

holidays. As the demands were not agreed to, the dispute

was taken in conciliation which culminated in an amicable

settlement between the parties on the basis whereof an award

was made by the Industrial Court on September 29, 1975. On

December 22, 1975, respondent No. 2 gave a notice under sub-

section (2) of section 42 of the Act intimating thereby

its desire for a change

390

in respect of classification, pay scales, dearness

allowance, casual leave, festival holidays and certain other

industrial matters. The notice was followed by two other

notices dated March 22, 1976 and March 27,

1976under the same provision of the Act.

The dispute not having been settled by the parties amicably,

the same was taken in conciliation which failed.

Consequently on July 27, 1976, a reference being Reference

No. 176 of 1976, was made to the Industrial Court at

Ahmedabad under section 73-A of the Act, wherein as a result

of negotiations, an interim settlement appears to have been

arrived at on November 17, 1977. Meanwhile, the workers of

respondent No. 1 struck work with effect from September 24,

1976 whereupon an application being application No. 1455 of

1976 was made an the following day by the respondent to the

Third Labour Court at Ahmedabad under section 79(1) & (4)

read with section 78(1) A (C) and section 97(1) of the Act

for a declaration that the aforesaid action of. the workers

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mentioned in Annexures 'X and 'B' to the application

amounted to an illegal strike. A public notice regarding

the filing of this application was given in 'Gujarat

Samachar' on September 27, 1976 and a copy thereof was also

affixed on the notice board of respondent No. 1. In the

proceedings taken upon the said application of respondent

No. 1, respondent No,. 2 appeared as the representative and

approved union for the processing industry in the local area

where the mills of respondent No. 1- are situate, and filed

written statement admitting that the, strike resorted, to by

the, workmen was illegal. Without meaning to burden the

record unnecessarily but with a view to complete the

narrative, it may be stated that in May, 1976, a new union

of workers employed in the concern of respondent No. 1 was

formed under the name and style of 'New Labour General Trade

Union' Ahmedabad which was registered under the Trade Unions

Act on June 3, 1976. Vide its letter dated June 8, 1976,

the new union raised demands regarding issue of permanent

entry passes, casual leave, festival holidays, provident

fund, Employees State Insurance, Bonus, Dearness Allowance

etc. which were not heeded to by respondent No. 1 on the

ground that the union could not be treated as a

representative union under the Act. The reminders sent by

the new union on June 21, 1976, June 29, 1976 and July 2,

1976 were also ignored by respondent No. 1. On July 6, 1976,

the new union suggested a few names of its members to

respondents No,. 1 for the purposes of negotiation and

requested it to fix a date for that purpose before July 10,

1976. As the attempt at negotiation also failed to evoke a

favourable response from respondent No. 1, the new union

made a representation to Labour Commissioner on July 10,

1976. A further representation made by the workmen to the

Management of respondent No. 1 on August 15, 1976 which was

followed by representations to the Governor of Gujarat on

August 18, 1976 and August 25. 1976 also failed to elicit

any response from respondent No. 1. Thereupon, the, new

union gave a strike notice on September 2, 1976 pursuant

thereto 131 employees of respondent No. 1 went on strike on

September

On October 4, 1976, the appellant and five other employees

of respondent No. 1 made an application to the Labour Court

praying that they may be impleaded as parties to the

aforesaid proceedings

391

initiated by respondent No. 1 and allowed to appear and

defend the same. By means of another application of the

even date, the appellant and fifteen other employees of the

respondent requested the, Labour Court to declare the strike

as legal. The former application was rejected by the,

Labour Court vide order dated October 6, 1976. On October

12, 1976, the Labour Court allowed the aforesaid application

of respondent No. 1 under section 79(1) & (4) read with

section 78(1) A (C) and section 97(1) of the Act and

declared that the employees mentioned in Annexures 'A' and

'B' to the application resorted to an illegal strike with

effect from September 24, 1976 and the continuation thereof

was also illegal as it had been resorted to during the

pendency of the aforesaid Reference No. 176 of 1976.

Aggrieved by these orders, the appellant and Kamalgiri, two

of the aforesaid six employees, filed, as already stated,

Special Civil Application No. 1845 of 1976 in the High Court

of Gujarat at Ahmedabad under Article 227 of the Con-

stitution praying that the aforesaid orders dated October 6,

1976 and October 12, 1976 passed by the Labour Court be

quashed. They also asked for a declaration that the strike

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resorted to by the employees of respondent No. 1 pursuant to

the, aforesaid notice of strike given by their new union was

just, proper and legal and that the employees who resorted

to the strike continued to be in service of respondent No. 1

without any break or interruption. The said employees

further prayed that respondent No. 1 be directed to award

full wages to the employees who went on strike. for the

period commencing from September 24, 1976 (when they

initially went on strike) to the date, of resumption of work

by them. Vide its order dated November 16, 1976, the High

Court summarily dismissed the petition and declined to, give

leave to appeal to this Court. The appellant thereupon made

an application to. this Court for Special Leave which was

granted. This is how the matter is before us.

Appearing on behalf of the appellant, Mr. B. Dutta has

contended that the order of the High Court dated November

16, 1976 dismissing in limine the aforesaid petition No.

1845 of 1976 submitted by the appellant and his co-employee,

Kamalgiri, under Article 227 of the Constitution thereby

upholding the aforesaid orders of the Labour Court and

dismissing the application of the appellant and his five co-

employees for being impleaded as parties to the aforesaid

application of respondent No. 1 under section 79(1) & (4)

read with section 78(1) A (C) and section 97(1) of the Act

is erroneous and cannot be sustained on a true

interpretation of section 80 of the Act which confers a

right on every individual employee to appear before the

Labour Court and contest on application under section 79 of

the Act which may threaten to adversely affect his rights

and interests. Mr. Dutta has also urged that the

application could not have been rejected in view of the two

exceptions engrafted on section 27 of the Act.' Mr. Dutta

has finally urged that in any event, the application ought

to have been allowed and the individual employees permitted

to appear and contest the aforesaid application of

respondent No. 1 as the stand taken by the representative

union in' regard thereto was mala fide and, against their

interests.

392

that it was respondent No. 2 alone, which was the

representative union, and not the appellant or any other

individual employee who had a right to appear and act in the

aforesaid proceedings initiated by respondent No. 1 before

the Labour Court.

For a proper appreciation of the rival contentions advanced

by counsel for the parties, it is necessary to refer to

section 80 and other relevant provisions of the Act. Before

doing so, it is necessary to bear, in mind that the

legislative intent underlying the scheme of the Act being to

inculcate and encourage the practice of collective

bargaining so that the labour is neither exploited nor

victimized and industrial peace and harmony is ensured, the

provisions of the Act are designed to emphasize that if

labour in an industry is organised through its own union

which is registered and recognised under the Act, then it is

that union which can appear and do all acts and agitate

matters in its representative capacity for the labour and if

it does choose to appear or act then no individual employee

is competent to appear and present his point of view. With

these prefatory observations, we proceed to advert to the

relevant provisions of the Act.

Section 80 of the Act provides : "con receipt of an

application under section 79, the Labour Court shall issue a

notice to all parties. affected by the dispute, in the

manner provided by rules under section 85. Subject to the

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provisions of Chapter V, the Labour Court may permit the

parties so affected to appear in the manner provided by the

provisions of sections 80A to 80-C. The Labour Court shall

then hold an inquiry".

A plain reading of the above section which was substituted

for the original section 80 by the Bombay Act 49 of 1955

makes it clear that the Labour Court can permit the parties

affected by the dispute to appear in the manner provided by

sections 80-A to 80-C of the Act but the discretion

conferred on the Labour Court has specifically been made

subject to the provisions of Chapter-V which deals with

"representation of employees and employers and appearance on

their behalf" and contains amongst other provisions section

27-A which is in the following terms :-

"27-A. Save as provided in sections. 32, 33,

and 33-A, no employee shall be allowed to

appear or act in any proceeding under this Act

except through the representative of

employees".

This section, it would be noted, consists of two Parts.

While the second part contains the general rule prohibiting

the grant of permission to an individual employee to appear

or act in any proceeding under the Act except through the

representative, of employees, the first part carves out

three exceptions to the said general rule which are mention-

ed in sections 32, 33 and 33-A of the Act. Whereas the last

exception i.e. the one carved out by section 33-A of the Act

relates to proceedings where the dispute is between

employees and employees, the other two exceptions mentioned

in sections 32 and 33 of the Act relate to proceedings in

respect of certain other disputes.

393

The term 'representative of employees' as used in the above

quoted section 27-A of the Act is defined in section 3 (32)

of the Act as meaning "a representative of employees

entitled to appear or act as such under section 30."

This takes us to section 30 of the Act. This section which

sets out in preferential order the persons who are entitled

to appear or act as representatives of employees in any

industry in local area assigns the foremost position to the

representative union.

Now a combined reading of sections 80, 27-A, 30, 32 and 33

of the Act leaves no room for doubt that consistent with its

avowed policy of preventing the exploitation of the workers

and augmenting their bargaining power, the Legislature has

clothed the representative union with plenary power to

appear or act on behalf of the employees in any proceedings

under the Act,and has deprived the individual employees or

workmen of the right to appear or act in any proceeding

under the Act where the representative union enters

appearance or acts as representative of employees. We are

fortifid in this view by a decision of this Court in Girja

Shankar Kashi Ram v. The Gujarat Spinning & Weaving Co.

Ltd.(1) where Wanchoo, J. (as he then was) speaking for the

Court observed as follows

"It will be seen that s. 27-A provides that no

employee shall be allowed to appear or act in

any proceeding under the Act, except through

the representative of employees, the only

exception to this being the provisions of ss.

32 and 33. Therefore, this section completely

bans the appearance of an employee or of any

one on his behalf in any proceeding after it

has once commenced except through the

representative of employees. The only

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exceptions to this complete ban are to be

found in sections 32 and 33.

The first contention advanced by Mr. Dutta is,

therefore, overruled.

The second contention raised by Mr. Dutta is also devoid of

substance. Sections 32 and 33 of the Act no doubt engraft

exceptions on the aforesaid general rule embodied in section

27-A of the Act but they are not helpful to the appellant as

the provisos appended thereto specifically preclude

individual employees from appearing or acting in any

proceeding under-the Act where the representative union

enters appearance or acts as the representative of

employees. It will be advantageous in this connection to

refer to the following passage occurring in the decision of

this Court in Girja Shankar Kashi Ram V. The

Gujarat Spinning & Weaving Co. Ltd. (supra), where Wanchoo,

"The result therefore of taking ss. 27-A, 32

and 33 together is that s. 27A first places a

complete ban on the appearance of an employee

in proceedings under the Act once it has

commenced except through the representative of

employees. But there are two exceptions to

this ban contained in ss. 32 and 33. Section

32 is concerned with all proceedings before

the authorities and gives power to the

(1) 11962] 2 Supp. S.C.R. 890 : 1196

(2) 2 L.L.J. 369 (S.C).

394

authorities under the Act to permit an

employee himself to appear even though a

representative of employees may have appeared

but this permission cannot be granted where

the representative union has appeared as a

representative of employees. Section 33 which

is the other exception allows an employee to

appear through any person in certain proceed-

ings only even though a representative of

employees might have appeared; but here again

it is subject to this that no one else, not

even the employee who might have made the

application, will have the right to appear if

a Representative Union has put in appearance

as the representative of employees. It is

quite clear therefore that the scheme of the

Act is that where a Representative Union

appears in any proceeding under the Act, no

one else can be allowed to appear not even the

employee at whose instance the proceedings

might have begun under s. 42(4). But where

the appearance is by any representative of

employees other than a Representative Union

authorities under s. 32 can permit the

employee to appear himself in all proceedings

before them and further the employee is

entitled to appear by any person in certain

proceedings specified in s. 33. But whenever

the Representative Union has made an

appearance, even the employee cannot appear

many proceeding under the Act and the repre-

sentation must be confined only to the

Representative Union. The complete ban

therefore laid by s. 27A on representation

otherwise than through a representative of

employees remains complete where the

representative of employees is the Repre-

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scntative Union that has appeared; but if the

representative of employees that has appeared,

is other than the Representative Union then

ss. 32 and 33 provide for exceptions with

which we have already dealt. There can

therefore be no escape from the conclusion

that the Act plainly intends that where the

Representative Union appears in any proceeding

under the Act even though that proceeding

might have commenced by an employee under s.

42(4) of the Act, the Representative Union

alone can represent the employee and the

employee cannot appear or act in such

proceeding."

The following observation made by Hidayatullah, C.J. in

Textile Laboour Association, Bhadra Ahmedabad v. Ahmedabad

Mill Owners Association, Ahmedabad(1) is also, pertinent :-

"Reading these two sections (ss. 32 and 33 of

the Act), we find that it is quite clearly

stated in the provisos to the two sections

that no individual is allowed to appear in any

proceeding in which the representative Union

has appeared as the representative of the

employees.

The second contention raised by Mr. Dutta is also,

therefore, repelled.

The last contention of Mr. Dutta that in view of the fact

that while appearing as the representative union in

respondent No. 1's aforesaid

(1) [1970] 3 S.C.C. 890-91.

395

application No. 1455 of 1976, respondent No. 2 was not

acting for and on behalf of the employees but was acting

mala fide and against their interests, the appellant and his

five other co-employees should have been allowed to be added

as parties to the application and permitted to appear and

act therein has also no force. It has to be remembered that

malafides or bonafides of a representative union has no

relevance while considering the provisions of section 27-A

and sections 32 and 33 of the Act which taken together

impose an absolute ban on the appearance of any individual

employee in any proceeding under the Act where the

representative union chooses to appear act as representative

of the employees. In case, the employees find that the

representative union is acting in a manner which is

prejudicial to their interests, their remedy lies in

invoking the aid of the Registrar under Chapter III of the

Act and asking him to cancel the registration of the union.

The following observations made in Girja Shankar Kashi Ram

v. The Gujarat Spinning & Weaving Co. Ltd. (supra) are

apposite in this connection :-

"But it is clear that bona fides or mala fides

of the representative of employees can have

nothing to do with the ban placed by s. 27A on

the appearance of any one else except the

representative of employees, as defined in s.

30 and that if anyone else can appear in any

proceeding we must find a provision in that

behalf in either s. 32 or s. 33, which are the

only exceptions to s. 27A. It may be noticed

that there is no exception in s. 27A in favour

of the employee, who might have made an

application under s. 42(4), to appear on his

own behalf and the ban which is placed by s.

27A will apply equally to such an employee.

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In order however to so en the rigour of the

provisions of s. 27A, for it may well be that

the representative of employees may not choose

to appear in many proceedings started by an

employee under S. 42(4), exceptions- are

provided in ss. 32 and 33. The scheme of

these three provisions clearly is that if the

Representative Union appears, no one else can

appear and carry on a proceeding, even if it

be begun on an application under s. 42(4) but

where the Representative Union does not choose

to appear there are provisions in ss. 32 and

33 which permit others to appear in

proceedings under the Act."

In view of the above quoted categoric and unequivocal

observations, the contrary observations made in N. M. Naik

v. Colaba Land Mills(1) on which strong reliance has been

placed by Mr. Dutta must be treated as overruled.

We have, therefore, no hesitation in agreeing with the view

expressed by the Labour Court and the High Court and holding

that neither the appellant nor his other co-employees had

any locus standi to appear or act as individual employees in

the aforesaid proceedings initiated by respondent No. 1 in

which respondent No. 2 which is the representative union in

the industry in the local area bad the right to

(1) [1960] 1 L.L.J. 440.

396

appear and act as the representative of the employees in the

industry and did appear or act as such. We may observe here

in passing that even new union to which the appellant and

some of his co-employee& belonged would have no right to

appear or act on behalf of the appellant or his co-employees

in the aforesaid proceeding initiated by respondent No. 1 as

it had not been registered and recognised as the.

representative union of employees under the Act.

In conclusion, we wish to make it clear that as learned

counsel for the parties have abstained from addressing us

regarding the legality or otherwise of the aforesaid strike

in view of the fact that it was not open to the appellant to

agitate that question because the Labour Court had refused

to add him as a party to respondent No. 1's aforesaid

application No. 1455 of 1976, we have refrained from making

any observation in regard thereto.

In the result, the appeal fails and is hereby dismissed but

in them circumstances of the case without any order as to

costs.

S.R. Appeal dismissed-

397